Ei Incumbit Probation Qui Dicit.

Proof lies on him who asserts, not on him who denies. The concept is that one is innocent until proven guilty. Regardless of what the law says about reasonable doubt, there is an unwritten presumption within the ranks of the military that if you are charged with sexual assault, then you are guilty. The stakes are your life! Your military counsel works for the same military that charged you. Consider that as you choose who represents you in your potentially life altering case.

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Article 134 - Wrongful Refusal to Testify

This section of article 134 covers situations where a service member refuses to testify in a trial/ court martial when he has no legal justification for such refusal. The elements to be proven in such cases are as follows:

  • That the accused was brought before officials appointed to carry out a court martial or an officer carrying out investigation (as per Article 32 UCMJ) or an officer taking deposition at a proceeding where a specific official was presiding/ judging.
  • That a) the presiding official directed that the accused should qualify as witness during the proceedings, b) after the accused had qualified as witness, the presiding official directed him to answer, in this capacity, a specified question, c) that at a specific time and place, the accused refused to follow the directive of the presiding official.
  • That the accused's refusal was wrongful and had no legal justification.
  • That under these given circumstances, this refusal was against the good order and discipline expected of members of the armed forces; or that this refusal brought discredit to the United States armed forces.

Maximum Punishment for Wrongful Refusal to Testify

The accused faces maximum punishment of dishonorable discharge, forfeiture of all pay and allowances and 5 years confinement if he is found guilty of this charge.

Explanation of Terms

Here, 'qualifying as witness' refers to the accused's declaration that he will testify during the legal proceedings in a truthful manner. The accused shall be charged with wrongful refusal to testify if the legal proceeding in which he refuses to do so is a court martial, military commission or court of inquiry.

Points to Note:

  • The accused cannot defend himself by stating that he mistakenly believed that his right to remain silent applied when he was asked to testify by an authorized official at a proceeding where he was a qualified witness.
  • The witness cannot be forced to testify to facts that may be self-incriminatory. Refusal to testify to such facts may not be deemed as wrongful refusal to testify. This defense may not be applicable if the accused has been granted immunity of some kind which prevents his prosecution for any facts revealed by his testimony.
  • The accused may defend his refusal if the testimony which he was directed to give is derogatory to him or aimed at degrading him in some way. However, if the prosecution can establish that this question, although derogatory is material to the trial, the accused shall not be able to use this defense to protect himself. Here, 'material' means that the testimony/ question is relevant and significantly important to the matter being investigated during the trial.
  • In US v. Webster, 1 MJ 496 (AFCMR 1975) it was established that if the witness is refusing to testify at an Article 32 investigation citing his article 31 rights, he is deemed to be "unavailable". A sworn statement may be considered in such situations by IO.

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